Mooers v. Kennebec & Portland Railroad

Kent, J.

The plaintiff, in his bill, prays for an injunction against the defendant corporation and its servants and agents, under and by virtue of the provisions in § 9 of c. 51, R. S. He states, in substance, that he obtained a judgment in the court of county commissioners, of this county, in December, 1852, for his damages for land taken by the railroad, and that it has never been paid. The defendants demur and for cause allege, that the claim, as it is set forth in the bill, is barred by the statute of limitations. This bill was filed in 1868.

By § 92, c. 81, R. S., “all actions upon judgments of any court, not a court of r’ecord, except municipal and police courts, and justices of the peace in this State, shall be commenced within six years after the cause of action accrues, and not afterwards.”

The court of county commissioners is not a court of record, within this statute. Woodman v. Inhabitants of Somerset, 87 Maine, 29.

The claim, therefore, was not one that could be enforced by law, when this bill was filed. The 9th section on which the complaint is founded, provides that “ when the damages remain unpaid for more than thirty days after they are due and demanded, a bill in equity may be filed, by the person entitled to them, praying for an injunction against the use or occupation of his land taken.”

The first point to be established is, that damages are due and unpaid. There must be an existing right to demand payment, and, if not complied with, a right to enforce the claim. A claim, whether in judgment or otherwise, cannot be said to be existing, within the moaning of this statute, when it is barred by the statute of limitations. If the plaintiff could not recover, on a suit on his claim, he cannot have this summary remedy by injunction. His legal right to the payment of damages, and to enforce that right at law, must be shown before this extraordinary power will be interposed to prevent the railroad from passing over, on their track, the land that has been so used for more than twenty years.

When the bill states a case within the statute of limitations at law, the objection may be taken, as a defense, by demurrer. If *282 the plaintiff be within any exception of the statute, he should state it in his bill. Story Eq. PL, §§ 484, 751.

There is another objection as the bill stands, as amended in the copy before us. The statute requires, § 9, that the damages must remain unpaid for more than thirty days after they are due and demanded. A regular and formal demand on the company must be shown. It is not enough to make the usual and general allegation, as in a writ, that, though often requested, etc. A specific demand, on a day certain, more than thirty days before filing the bill, must be stated, or the bill will be bad on demurrer.

Demurrer sustained.

Bill dismissed with costs.

Appleton, C. J.; Cutting, Dickerson, and Barrows, JJ., concurred.